Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1084887. Loretta Murphy Begen, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
DAWSON, Acting P.J.
Following trial, a jury convicted Jose Ulisses Duran (appellant) of the premeditated and deliberate murder of Doris C. (Pen. Code, § 187). The trial court sentenced appellant to state prison for 25 years to life.
On appeal, appellant claims the trial court erred in admitting evidence of his prior uncharged misconduct and evidence that he knew how to choke someone into unconsciousness. He also contends that the prosecutor committed error during closing argument when he commented on appellant’s right to remain silent. We find no error and affirm.
FACTS
On the evening of December 1, 2004, police officer Brett Short received a radio dispatch concerning a missing juvenile. When Officer Short arrived at the C. family residence, he spoke to teenaged Cristal C., who was excited and crying. Cristal’s mother also was present, but did not speak English. Cristal told the officer that she believed her sister, Doris, age 11, had gone to the grocery store next door at 6:30 p.m., but had not returned by 8:30 p.m. and no one at the store had seen her. Doris was five feet tall, weighed 80 pounds and, when last seen, was wearing blue jeans and a black jacket with fur lining around the hood. Officer Short entered the information into the missing persons information system, got a school photograph of Doris, and began to canvass the area.
The following morning, Detective Charles Hale went with another officer to the C. residence and asked Cristal to come to the police station two blocks away. At the station, Detective Hale conducted a tape-recorded interview of Cristal. During the interview, she said she last saw Doris about 7:00 p.m. the previous evening. At that time, only she and Doris were home and Cristal was expecting her boyfriend, appellant, to come over. While Cristal was in the bathroom and Doris in the living room, Cristal heard the front door open and heard Doris announce appellant’s arrival. Cristal heard appellant say he would come back later. She heard the door close and, two to three minutes later, again heard the door close. When Cristal came out of the bathroom, Doris was gone. Cristal thought Doris’s absence was “out of character” because she never left the house without telling someone. Cristal went to the store next door and asked if anyone there had seen Doris. She then telephoned her mother before calling the police.
Detective Hale went to the middle school where Doris attended and spoke to some of the students. One student stated that Doris was seen on the night of her disappearance walking down the alley near her home, holding hands with a man who had “long, curly, greasy hair and blue eyes.” Another student was said to have seen Doris near the store next to her house with “a similar[ly] described gentleman that was extremely dirty.” Because Detective Hale thought the description resembled a local registered sex offender, he went to that registrant’s home and searched the residence. Other sex registrants in the area were also searched. Nothing developed that assisted the investigation.
Detective Giles New was asked to assist in finding Doris. After obtaining all known information about the case, and after again searching the registered sex offender’s home, Detective New went to the C. family home. There he received information that Cristal’s boyfriend, appellant, was the last known person to have seen Doris.
Deputy Sean Williams was directed to locate and interview appellant. Deputy Williams found appellant at the C. family home and interviewed him at 11:15 a.m. Deputy Williams did not speak Spanish, so Deputy Galvan assisted him in the interview as an interpreter. During the interview, which was not recorded, appellant stated that he left his house about 7:00 the previous night and arrived at the C. house about five minutes later. He knocked on the door and Doris answered. When he asked Doris where Cristal was, she said in the bathroom. Appellant knocked on the bathroom door and, noticing that he was missing his cell phone and wallet, said he would run home to get them and be right back. When he returned about 10 minutes later, Doris was not there. Appellant helped Cristal with her homework for a few minutes but, after they got into an argument, he left to let Cristal “cool off.” When he returned 10 to 15 minutes later, Cristal was on the phone with her mother, trying to figure out where Doris was. Cristal told appellant she had seen a note indicating Doris had gotten into a fight with a friend. Appellant and Cristal looked for Doris but did not find her. Appellant described Doris as “a little sister,” and said she was wearing a black coat, blue jeans, a white T-shirt and white shoes. Appellant admitted that he was not supposed to be at the C. house when the parents were not there.
Doris’s body was subsequently discovered, face down in a canal outside of town. Her right arm was in the right sleeve of a black down jacket with a fur-lined hood. She was wearing a black pullover shirt, blue jeans, white panties and white shoes. Her blue jeans were unbuttoned and unzipped. One officer thought the jeans were down around her hips. Around her neck was a black leather belt with a silver buckle.
Detective New and other detectives conducted a search of the area where Doris’s body was found. Another parolee convicted of sex crimes against a minor was searched. Detective Joe Mendonza also helped search the canal bank and interviewed people in the area to determine if anyone had seen anything. A fisherman had been seen fishing near the body when it was discovered. The fisherman said he did not see the body because of the garbage in the water. Police officers subsequently searched his vehicle.
Detective Frank Navarro spoke to Fidel Avina-Arevalo, a security guard from an almond hulling business near the canal, who had seen a “suspicious vehicle” near the business the previous day. License plate information given to Detective Navarro by Avina-Arevalo and others at the business revealed that the car was registered to a rental agency and rented by one Kaster Tezino. Detective Navarro subsequently audiotaped an interview with Tezino.
On the evening of December 2, Detective Navarro interviewed appellant at the police station. The interview was audio and videotaped. In the interview, appellant said he had been dating Cristal for about a year and five months. Appellant said that, when he arrived at the C. home about 7:05 p.m., Doris answered the door. Appellant knocked on the bathroom door, where Cristal was, and told her he would be back after he retrieved his cell phone and wallet. When he returned about 7:20 p.m., Cristal appeared to be mad at him, so he left and returned again about 7:28 p.m. At that point, Cristal was on the phone with her mother because Doris was missing. Appellant and Cristal checked the store next door but did not find her.
Detective Navarro asked appellant numerous times if he had given Doris a ride anywhere, but appellant insisted he had not. Appellant said he last saw Doris when he left the house at shortly after arriving at 7:05 p.m. and she was at the window waving to him. Appellant said Doris “still looked like a little girl” to him. Appellant stated that Cristal’s brother, J.C., had been threatened by gang members in the area in the past, but that he, appellant, had not been threatened.
Following the interview, Detective Navarro retrieved Doris’s school planner. In it was written “I love Ulisses” with hearts drawn around it. A date in June was marked as “Ulisses birthday” and there was another notation stating, “My first kiss from Ulisses.” Detective Navarro decided he needed to further interview appellant, so he picked him up from his residence, transported him to the sheriff’s department, and again interviewed him, this time at 12:30 a.m. on December 3, 2004.
During this interview, which was videotaped and subsequently played for the jury, appellant at first repeated his earlier version of the events. He again denied taking Doris for a ride, stating he would not have given her a ride because her parents were strict. He denied that he liked her as a boyfriend, but instead like a “sister in law.” Appellant, who responded to both Jose and Ulisses, stated that he was born in June of 1984, and that Doris was also born in the month of June, so she knew his birth date. He repeatedly denied that he had ever kissed Doris and denied that any of his DNA would be found on her body.
During the interview, Detective Navarro told appellant that he knew appellant had kissed Doris because it said so in her notebook, and that he had a video showing Doris next to appellant in his car. He also suggested that Doris was the one that “provoked it,” to which appellant said, “Yes, yes, yes.” Appellant finally admitted that Doris kissed him one time, a month prior, but that he told her not to do it again. Appellant continued to deny his involvement. But then he started crying and said that Doris asked him to take her to the park so she could meet a friend. He took her to the park, went home to get his wallet and phone and, when he returned to the park, he could not find her.
Detective Navarro then showed appellant a photograph of the belt found around Doris’s neck. Appellant denied the belt was his. After Detective Navarro suggested that Cristal had seen him wearing the belt, appellant admitted that the belt, which belonged to his uncle, was in his car and said that Doris must have taken it.
Claiming he had a video showing appellant’s car next to the canal and a witness who had seen what happened, Detective Navarro suggested that Doris accidentally fell into the canal. Appellant explained that Doris fell into the canal getting out of the car and that he had tried to help her get out with the belt. When Detective Navarro asked appellant what he and Doris were doing at the canal, appellant claimed Doris told him to go there. Once they got there, Doris told him she loved him. When she got out of the car, she fell in. Although appellant wanted to help her with the belt, he was not able to see her in the water and he was scared to go into the canal.
Appellant then admitted that he had strangled Doris, but said he did not know why. He admitted that he and Doris kissed and, when she told him she was going to “tell them,” he became afraid and placed the belt around her neck. Doris again insisted that she was going to tell her parents, which scared appellant “even more” and he pulled on the belt “more.” Doris fell to the ground. Appellant then clarified that he did not strangle Doris with the belt but with his hands.
Subsequently, autopsy results confirmed that Doris had been strangled manually, not with the belt found round her neck.
Detective Navarro then read appellant his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights, and appellant agreed to continue with the interview. Appellant told Detective Navarro that, when he first left the C. house to retrieve his cell phone, Doris followed him and asked that he take her to the park, promising to be quick. At the park, she told him to keep going and to drive out of the city. Doris told appellant she loved him. At the canal, they talked in the car and she started to hug and kiss him and asked him to “demonstrate” his love for her. Doris then threatened to tell her parents if he did not comply. When she again insisted that she would tell her father, appellant got scared and “squeezed” with both hands. At one point, he let go, but she again said she would tell, so he squeezed her again. Appellant then took Doris out of the car, or she fell out, and he put the belt around her neck to pull her about five feet so he could throw her into the water. Appellant then returned to the C. home. He was afraid and upset at himself because he knew he “did bad,” but that it was “already too late.”
Following the interview, appellant went with Detective Navarro and other officers and showed them the route he took from the C. home to the canal. The interview was again recorded. Appellant had the officers stop near a tree, which he stated was where he dumped the body into the canal.
A recorded conversation between appellant and his uncle, Jorge Castellon, in the visiting room of the county jail on the evening of December 3, 2004, was placed in evidence by the prosecution and played for the jury. In it, appellant confirmed that he was the only one involved in the incident. He told his uncle that he took Doris to the park and, when he returned, she was gone. Appellant suggested that the officer had told him he had to confess to the killing because he was the only suspect and, if he did not confess, he would get more jail time. If he did confess, his sentence would be reduced. He also suggested that he confessed only because the officers told him he could not talk to Cristal unless he did.
The prosecution also played for the jury two recorded conversations that occurred at the jail on December 4, 2004, between appellant and his sister-in-law. In the first, appellant suggested that Doris was kidnapped and killed by others, perhaps gang members, who were actually after her brother J.C., and that appellant was present when those things occurred. He denied that he confessed to killing Doris because the officers threatened him.
In the second conversation, four hours later, appellant stated that the two men who committed the crimes arrived at the C. house at the same time he did. Appellant told them J.C. was not there, and one of them pointed a gun at him. Appellant knocked on the door. When Doris answered, they went inside and one of the men grabbed Doris. They went outside and got into appellant’s car. One of the men stayed at the house and the other directed appellant where to go. The man strangled Doris, and then made appellant do the same. When he hesitated, the man hit him in the head. The man then made appellant put a belt around Doris’s neck and throw her into the canal. The man threatened to kill appellant and his family if he told anyone what had happened. Appellant later returned to see if Doris was still alive, but she wasn’t.
On December 6, 2004, appellant asked that he again be interviewed, this time to make sure that law enforcement was aware that Doris was kidnapped by persons who wanted to kill J.C. According to appellant’s statement during the ensuing interview, two men approached him when he arrived at the C. house, one of them with a gun, and ordered him to call J.C. Appellant told them J.C. was not home. When appellant knocked on the door, Doris opened it and the man with the gun followed him into the house. Appellant told Cristal he would be right back, and the man with the gun grabbed Doris and made appellant drive to the park with the gun pointed at his head. The man began strangling Doris when she yelled. Appellant described Doris at this point as still conscious because she was breathing. The man ordered appellant to drive to the canal bank and, once there, Doris screamed again. The man strangled her, causing foam to come from her mouth, and appellant thought she was now unconscious. The man then ordered appellant to “finish killing her” and to “dump her.” The man hit appellant and threatened to have his family killed. Appellant took Doris out of the car and told the man she was already dead. The man threw appellant a belt that had been in the car and ordered him to put it around her neck and dump her into the canal. Appellant dragged and carried Doris to the canal and threw her in. After appellant drove the man to another car, he drove to the C. home because he was afraid that Cristal had been harmed. When he got to the house, he argued with Cristal and returned to the canal to see if he could save Doris. But Doris was already dead, so he left.
Detective Navarro asked appellant why he had given different versions of the events, and appellant said he was afraid for himself and his family members. He decided to tell the truth after discussing the matter with his family. Appellant denied knowing the men who committed the crimes but stated both men were Hispanic.
Detective Navarro told appellant that a surveillance camera at the store next to the C. house and eyewitnesses who saw Doris in appellant’s car both contradicted appellant’s new version of events. Appellant insisted he was now telling the truth, although Detective Navarro expressed his disbelief. Appellant finally admitted that his newest version of events was a lie. He admitted that he “took her out myself,” and claimed that a person got into the car with him and Doris at the park. Detective Navarro again expressed disbelief, and appellant then claimed that a man was waiting for him at the canal. Appellant described this man as 23 or 24 years old, a Spanish speaker who looked “Chicano.”
After speaking with Detective Navarro, appellant made another telephone call to his uncle from the county jail. In it, he broke down and told his uncle not to do “anything more” and admitted “I made everything up.” Appellant again said he was being threatened, but he did not know who was threatening him. Appellant felt that all of the evidence was stacked against him, and he only wanted Cristal to forgive him.
Doris’s brother, J.C., testified that appellant had been welcome at their home until Cristal became pregnant by appellant and had an abortion. After that, appellant was not allowed at the home unless one of the parents was home, although he usually came by every day. J.C. had seen Doris and appellant together in “playful activity” and acting like siblings.
On the evening that Doris disappeared, J.C. had been at a taekwon do lesson with his father, leaving Cristal and Doris home. After the lesson, J.C. and his father learned that Doris was missing and they returned home. J.C. looked for his sister for two hours, returned home, and then went with appellant to look for Doris. Appellant said nothing about Doris and did not warn J.C. about any possible threat. J.C. was told early the next morning that Doris had been found in a canal.
J.C. acknowledged that he was a member of a street gang and that, when he first learned Doris was missing, he feared the rival gang was involved. He also acknowledged there was “a problem” between his cousin Felix C. and his family, and he was concerned that Felix might cause harm to his family.
Doris’s mother, Mrs. C., testified that Doris was “somewhat shy,” that she had never run away from home, nor was she allowed to be home alone. At the time of the incident, appellant was dating her other daughter, Cristal. He was welcome in their home and knew their family schedule.
Cristal, who was 18 at the time of trial, testified that she had begun dating appellant in July of 2003 when she was 15 and he was 18. Appellant had been welcome in her parents’ home and was there almost every day. In February of 2004, Cristal had become pregnant by appellant but suffered a miscarriage. Cristal again became pregnant by appellant in the winter of 2004. Although her parents did not know it, she was pregnant at the time Doris was killed. She subsequently had an abortion in January 2005.
Cristal testified that the first time she and appellant had sex was about a month after they began dating; she told him “no,” but “he didn’t care.” Appellant removed her clothes while holding her wrists, removed his own clothes, and then “just forced himself” on her. Cristal did not tell anyone and did not tell officers about this incident until 2006. Cristal also testified to two occasions when she and appellant had sex near the canal; one of those times was in June of 2004. Prior to having sex, appellant would undress her and he would start by unzipping her pants.
Cristal considered Doris to be shy but agreed that she liked boys. She considered appellant a good swimmer, and she knew Doris knew how to swim. Cristal thought the belt found around Doris’s neck was similar to one that appellant wore. Appellant told her he had gotten it from his uncle. Cristal’s testimony about the events of the evening surrounding Doris’s disappearance mirrored those given to the officers when she was first interviewed. Cristal added that appellant had made statements to her on the telephone indicating he was responsible for Doris’s death. He told her not to be mad at him and that he did not have the “guts” to tell her what he had done, but he would tell his lawyer and the lawyer would tell her.
Jose Rivera and his wife, Anna, appellant’s aunt and uncle, both testified that they had loaned one of Mr. Rivera’s belts to appellant four to six months before the crime. The belt, which appellant did not return, looked like the belt found around Doris’s neck.
Kaster Tezino, whose rental car had been seen in the vicinity of the warehouse near the canal, testified that he did not kill Doris. He explained that he and his girlfriend ran an Internet business and, on the night in question, he dropped off his girlfriend with a client and drove to the vicinity of the warehouse to work on his laptop computer. He was told by someone at the warehouse that he could not park there, so he moved down the street. Security guard Avina-Arevalo corroborated this testimony and provided a surveillance tape showing his contact with Tezino, which the jury viewed.
Dr. George Bolduc, the forensic pathologist who performed the autopsy, testified that the body had scratches on the front of the neck, consistent with manual strangulation or the deceased “trying to free something on her neck.” The scratches were not consistent with ligature strangulation, which would include strangulation with a belt. The body had fluids in the airway and lungs, which was typical of drowning, and Dr. Bolduc suggested that Doris was still breathing when she was placed into the water. The body had no injuries to the genital area and the hymen was intact. Dr. Bolduc opined that Doris died of drowning and that strangulation was a contributory factor; in other words, that Doris was strangled before she was placed in the water and then drowned.
Defense
Appellant’s defense was that someone other than appellant actually killed Doris. Counsel argued that law enforcement assumed appellant was guilty and failed to investigate leads that might have incriminated someone else: the fisherman on the canal bank, the registered sex offender, Tezino, Cristal, or gang members. Counsel argued that appellant’s confession to the police officers was coerced.
Officer Kalani Souza, Officer Short and Sergeant Johnny Lemus each testified that, in interviewing Cristal on the night of Doris’s disappearance, she never mentioned that appellant had been at the house before Doris disappeared.
The parties stipulated that criminalist Nancy Seger tested 48 items for the presence of semen but found none. They also stipulated that no DNA testing was done on any of the items, including the belt found around Doris’s neck.
Rebuttal
Cristal was recalled to the stand and testified that, on one occasion, she and her mother observed red scratches on appellant’s face and neck. When questioned about it, appellant told them he and some friends had been playing a game in which they tried “to choke you till you faint.” Appellant told them a friend choked him and he fainted and fell to the ground. He also told them he knew “how to do that.” Cristal acknowledged that she did not inform law enforcement about this incident until May of 2006.
Mr. C., Doris’s father, testified that the note in Doris’s school planner in the November calendar that stated “My first kiss from Ulisses” was in Doris’s handwriting.
DISCUSSION
1. Did the trial court err in admitting evidence of appellant’s misconduct towards Cristal C.?
Appellant contends the trial court erred in admitting evidence of his sexual relationship with Cristal. This would include Cristal’s description of her first sexual intercourse with appellant, which appellant now terms a “rape”; the continuing sexual relationship between the two, including Cristal’s description of having sex at the canal on two occasions; and Cristal’s two pregnancies. Appellant contends “such uncharged misconduct was irrelevant, inadmissible under Evidence Code section[] 1101 and/or unduly prejudicial [under Evidence Code section 352], thereby denying appellant his due process right to a fair trial.” (Some capitalization omitted.) We disagree.
California law has long precluded use of evidence of a person’s character, a predisposition, or propensity to engage in a particular type of behavior as a basis for an inference that he or she acted in conformity with that character on a particular occasion. Evidence Code section 1101, subdivision (a) “prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt); see People v. Falsetta (1999) 21 Cal.4th 903, 913.)
Evidence Code section 1101, subdivision (a) provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
Evidence Code section 1101, subdivision (b) clarifies, however, that this rule “does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (Ewoldt, supra, 7 Cal.4th at p. 393.) “‘[E]vidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes.’” (People v. Carter (2005) 36 Cal.4th 1114, 1147 (Carter).)
Evidence Code section 1101, subdivision (b) provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
“As Evidence Code section 1101, subdivision (b) recognizes, that a defendant previously committed a similar crime can be circumstantial evidence tending to prove his identity, intent, and motive in the present crime. Like other circumstantial evidence, admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence vel non of some other rule requiring exclusion.” (People v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) When a defendant pleads not guilty, he or she places all issues in dispute, and thus the perpetrator’s identity, intent and motive are all material facts. (Roldan, at pp. 705-706.)
In addition to its relevance to an issue other than predisposition or propensity, to be admissible under Evidence Code section 1101, subdivision (b), the probative value of the evidence of uncharged crimes “must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.” (People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp).)
Here, the prosecutor used the evidence of which appellant complains to support the argument that appellant was a predator who took Doris to the canal on the night of her death in order to molest her and then premeditatedly murdered her when she resisted and threatened to tell her parents. The motive for the premeditated murder, thus, was to avoid detection and the consequences of appellant’s sexual advances toward Doris.
In his argument to the jury after the close of evidence, the prosecutor addressed two main questions: whether appellant was the person responsible for Doris’s death, and whether the homicide was premeditated murder or something less than that. The argument painted appellant as a liar, who had told so many stories that none of them could be believed—including that in which he admitted strangling Doris but claimed he acted in some inexplicable and unplanned way in response to a situation he did not want.
Appellant acknowledges, through both trial and appellate counsel, that the evidence of which he complains was relevant to the question of his sexual intentions toward Doris. The opening brief states “the uncharged acts evidenced only a willingness to engage in unlawful sexual behavior.… [¶] … [¶] … As defense counsel aptly recognized, the only thing the prior act evidence showed was appellant’s predilection for intercourse with underage females in locations where the act would not be discovered ….” But, appellant contends, the evidence was not admissible because appellant was charged with murder and the prior misconduct evidence did not demonstrate “an intent to kill or malice aforethought. This is particularly true given that the prior uncharged acts did not result in a death.”
We reject appellant's position. We can discern no reason in logic or law why evidence that appellant had a “willingness to engage in unlawful sexual behavior” and a “predilection for intercourse with underage females” did not supply evidence of motive for the murder that occurred. There is no requirement of which we are aware that the uncharged act must have the same parameter and result as the charged crime. Indeed, we think that is not the law. (See, e.g., People v. Sully (1991) 53 Cal.3d 1195, 1224-1225 [charged crimes included murder, while other-crimes evidence was of imprisonment, rape, and assault; court found common characteristics of illicit sex, use of cocaine and abuse of prostitutes sufficient to support admission of other-crimes evidence on issues of identity and intent of perpetrator].)
A trial court’s determination of the admissibility of evidence of uncharged offenses is generally reviewed for an abuse of discretion. (Kipp, supra, 18 Cal.4th at p. 369; Carter, supra, 36 Cal.4th at p. 1149.) An abuse of discretion will not be found unless the trial court has exceeded the bounds of reason by exercising its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) To the extent the trial court’s ruling depends on the proper interpretation of the Evidence Code, however, it presents a question of law; and our review is de novo. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)
Viewing the evidence in the light most favorable to the trial court’s ruling (see Carter, supra, 36 Cal.4th at p. 1148), we think that counsel, the prosecutor, and the trial court were all correct in finding the evidence of appellant’s sexual relationship with Cristal to be relevant to his sexual intentions toward Doris. Appellant engaged in sexual activity with Cristal when she was 15 years old. He initiated this contact by unbuttoning and unzipping her pants and forcing himself on her. Cristal and appellant subsequently had sex at the canal on at least two occasions. At the time appellant drove Doris to the canal, she was 11 years old. Although there was no evidence that appellant accomplished a sexual purpose with Doris, he did admit that he kissed her and there was evidence that, at the very least, her pants were unbuttoned and unzipped. The fact that Doris but not Cristal was murdered does not negate the similarity between what happened to Cristal and what happened to Doris.
Appellant argues further that any probative value of the uncharged misconduct evidence was substantially outweighed by its prejudicial effect. As argued by appellant, the evidence of the uncharged act added nothing to the state of the evidence. There was already evidence that Doris maintained a planner in which she wrote of her love for appellant. There was also evidence that Doris left the house with appellant and that the two went to the canal. According to appellant, his confession supplied “an explanation of events and the condition of Doris’ body provided fodder for an explanation of events.” In this circumstance, appellant contends, any evidence of uncharged sexual misconduct with an underage girl unreasonably labeled him “a bad man” and compelled the jury to conclude that he had attempted a forcible sex act at the canal.
Even if evidence of uncharged crimes is relevant under Evidence Code section 1101, subdivision (b), the substantial probative value must not be outweighed by its potential for undue prejudice under section 352. (Ewoldt, supra, 7 Cal.4th at p. 404 [“‘Since “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have substantial probative value’”]; Kipp, supra, 18 Cal.4th at p. 371.) A trial court should not, however, exclude highly probative evidence unless the undue prejudice is unusually great. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) “Undue prejudice” refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis:
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
“The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.)
“The principal factor affecting the probative value of the evidence of defendant’s uncharged offenses is the tendency of that evidence to demonstrate the existence of” the fact for which it is being admitted, in this case intent and motive. (Ewoldt, supra, 7 Cal.4th at p. 404.) The primary factors affecting the prejudicial effect of uncharged acts are whether the uncharged acts resulted in criminal convictions, thus minimizing the risk the jury would be motivated to punish the defendant for the uncharged offense, and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses. (Ewoldt, supra, at p. 405; see also People v. Ortiz (2003) 109 Cal.App.4th 104, 118 [“defendant had been punished—via convictions—for the prior bad acts introduced before the jury, a circumstance courts have acknowledged lessens its prejudicial impact”]; People v. Kelley (1997) 52 Cal.App.4th 568, 579 [“Although such evidence is always prejudicial, the prejudice was minimized by proof of the [prior] conviction. It validated the evidence and minimized the chance a jury would punish him for the prior offense, for which he had already been punished”].)
We have discussed, ante, the probative value of the evidence regarding appellant’s conduct with Cristal. Regarding the potential for prejudice, although appellant was not convicted of any crime as a result of his conduct with Cristal, that conduct was pale in comparison to the abduction and murder of Doris. On this record, we agree with the trial court that the substantial probative value was not outweighed by the risk of undue prejudice.
One further note. Appellant also contends that the prejudice was exacerbated by the omission of any instruction on the use of the uncharged act evidence, specifically CALCRIM No. 375, which instructs the jury that the evidence of a defendant’s past conduct cannot be used to show the defendant has a bad character or was disposed to commit the charged crime. Respondent notes that the record shows no request for such instruction was made by either party, and appellant does not claim otherwise. “[I]n general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct.” (People v. Collie (1981) 30 Cal.3d 43, 64, fn. omitted.) The exception to this rule is the “occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.” (Ibid.) This case does not fall within the exception. The evidence of past conduct was a small part of the evidence against appellant, was not unduly prejudicial, and was substantially relevant to the material issues of motive and intent.
2. Did the trial court err in admitting evidence that appellant had knowledge of how to choke someone into unconsciousness?
Appellant contends that the trial court erred in admitting evidence that he knew how to choke someone into unconsciousness. He argues that the evidence was irrelevant because that knowledge had no tendency in reason to prove any planning or reflection necessary for premeditation and deliberation, and it was so prejudicial as to deprive him of due process. We disagree.
Procedural Background
On October 31, 2006, during its case-in-chief, the prosecutor asked Cristal if she recalled making a statement during an interview in May of 2006 that appellant “came home one time with scratches all over his neck” and whether she had spoken to appellant about how he got those scratches. Cristal testified that she had. The prosecutor then asked the court, “Does the objection still stand?” and, after the parties approached the bench and an off-the-record discussion was held, the prosecutor withdrew the question.
On November 8, 2006, out of the presence of the jury, the prosecutor referred to the direct examination of Cristal and reminded the trial court that an objection had been made by defense counsel “over a week ago,” which the court took under submission but had not yet ruled on. When asked by the trial court, the prosecutor explained:
“I was trying to elicit information from [Cristal] relating to statements she made during the course of that interview, where she told investigators that, in response to a question as to whether or not [appellant] had ever grabbed her throat area or anything like that, she said, no.… [¶] … [Cristal] states: No. But, um, I remember one day he got home to my house. He was, like, all scratched up from his … face or something. And my mom asked him what happened. And he said that, when he got off work, he was outside with some friends, and that he told me that they were, um, playing around, and that one of his friends grabbed him by the throat. And that it makes you stop breathing and faint. And they said that he fainted and he fell to the ground. And he said that his friends—that he knew how to do that, like, to make you stop breathing, but you would just faint.”
When questioned by the trial court, the prosecutor stated that he thought the evidence went to the issue of knowledge “that strangling somebody can cause them to pass out,” and that there was evidence that Doris was strangled before being dumped into the canal. Defense counsel objected because the issue was who killed Doris, not how she was killed. The prosecutor countered that evidence that Doris was possibly alive but unconscious when put into the water “goes directly to the issue of whether or not placing her in the water was an act in furtherance of killing her and done with premeditation and deliberation.”
Following further argument by the parties, the court ruled that it would allow the prosecutor to ask “those limited questions,” not under Evidence Code section 1101, subdivision (b), but instead because “it goes to the issue of premeditation and deliberation, which is charged in this case.”
Subsequently, during rebuttal, Cristal testified that, on one occasion, she and her mother observed red scratches on appellant’s face and neck. When questioned about it, appellant said he and some friends were playing a game in which they tried “to choke you till you faint.” Appellant further said a friend choked him and he fainted and fell to the ground. He also told them he knew “how to do that.” Cristal acknowledged that she did not inform law enforcement about this incident until May of 2006.
Applicable Law and Analysis
“The principles governing the admission of evidence are well settled. Only relevant evidence is admissible (Evid. Code, §§ 210, 350), ‘and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)’ [Citation.]” (People v. Harris (2005) 37 Cal.4th 310, 337.)
“‘The trial court has broad discretion in determining the relevance of evidence [citations] but also lacks discretion to admit irrelevant evidence.’” (Carter, supra, 36 Cal.4th at pp. 1166-1167.)
“Relevant evidence is evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ (Evid. Code, § 210.) ‘“The test of relevance is whether the evidence tends, ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive.”’ [Citation.]” (People v. Wilson (2006) 38 Cal.4th 1237, 1245.) “Evidence is irrelevant, however, if it leads only to speculative inferences.” (People v. Morrison (2004) 34 Cal.4th 698, 711.) “‘“Speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose.”’ [Citation.]” (People v. Brady (2005) 129 Cal.App.4th 1314, 1337-1338.)
“Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. [Citations.] Speaking more particularly, it examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question.” (People v. Waidla (2000) 22 Cal.4th 690, 717.)
“That discretion is only abused where there is a clear showing the trial court exceeded the bounds of reason, all of the circumstances being considered.” (People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)
Here, Cristal testified that appellant once told her about a “game” in which a friend of his choked him until he passed out. The reasonable inference to be drawn from the evidence presented is that appellant was aware that a person could be strangled, pass out, and regain consciousness, as appellant claimed happened to Doris in one version of the events he related to Detective Navarro. The relevance of evidence may be established by reasonable inferences drawn from the facts presented. (See People v. Cunningham (2001) 25 Cal.4th 926, 995; People v. Scheid (1997) 16 Cal.4th 1, 13.)
Appellant contends further that the choking game evidence was subject to exclusion under Evidence Code section 352. He maintains that the evidence was more prejudicial than probative.
Even relevant evidence may be subject to exclusion by the trial court “if its probative value is substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice.” (People v. Mendoza (2007) 42 Cal.4th 686, 699.) “The weighing process under [Evidence Code] section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) “Our review on this issue is deferential. A trial court’s decision whether to exclude evidence pursuant to Evidence Code section 352 is reviewed for abuse of discretion.” (People v. Mendoza, supra, at p. 699.) “The court’s exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value.” (People v. Brown (1993) 17 Cal.App.4th 1389, 1396.) “We will reverse only if the court’s ruling was ‘arbitrary, whimsical, or capricious as a matter of law. [Citation.]’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
We have found that the relevance of the evidence was established. The probative value of the choking evidence to establish intent was significant. And, the evidence was not cumulative in nature.
As to the prejudicial effect, appellant claims the evidence unfairly suggested that appellant had been “planning to use” his knowledge about strangulation “since some time around the time of the horseplay,” and that, having heard that appellant raped Cristal and that he knew how to choke people into unconsciousness, “the only possible conclusion was that urged by the prosecution—first degree murder.” According to appellant, putting “these two character attributes” together with the fact that Doris was 11 years old, “the jury could only conclude that appellant was so despicable and so likely to have committed the homicide in the manner described by the prosecution that there was no need to even evaluate the evidence.”
“‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors. [Citation.]’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 958; see People v. Harris (1998) 60 Cal.App.4th 727, 737.)
“‘“The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against … [one party] as an individual and which has very little effect on the issues.”’ [Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 178, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118; see also People v. Killebrew (2002) 103 Cal.App.4th 644, 650.) The evidence in question here was not prejudicial in this sense. Rather, the choking game evidence was prejudicial only because of its tendency to establish appellant’s intent. In a case where the jury was called upon to decide if appellant murdered Doris, the fact that he had previously engaged in a choking game with friends was damaging but not unduly inflammatory.
3. Did the prosecutor commit Griffin and/or Doyle error during closing argument?
Appellant contends that the prosecutor, during argument, infringed on his right to silence. Appellant claims this was Griffin and/or Doyle error. (Griffin v. California (1965) 380 U.S. 609 (Griffin); Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).) We disagree.
The statement to which appellant objects occurred during closing rebuttal, when the prosecutor questioned the defense’s implication that Cristal murdered her sister Doris and appellant confessed to the murder to protect Cristal. The prosecutor argued:
“[F]or you to believe the Cristal theory, you would have to believe … for almost two years she’s been able to maintain her composure and get away with murder. You have to believe that her family is in complicity. They’re okay with the fact she murdered her sister. And they have gotten together, decided to pass the blame on an innocent man, [appellant]. [¶] You’d also have to believe they’ve been able to fool the … Police Department and Sheriff’s detective for nearly two years. Or maybe the sheriff’s department and [the] PD is in on it. It’s one big conspiracy against [appellant]. You also have to believe throughout the entire investigation, [appellant] has been okay with the fact he’s a patsy. He was okay with the fact he’s going down for a murder he didn’t commit, to protect somebody who no longer loves him, no longer wants to be with him, and aborted his unborn child. These are just some of the things you would have to believe in order to find him not guilty.” (Italics added.)
Defense counsel objected on the basis of “Griffin error.” In discussion outside the presence of the jury, defense counsel argued that the italicized language above was clearly a comment on appellant’s right to remain silent. The prosecutor argued that his statement that appellant “was okay with it” was in reference to the fact that the jury had seen and heard hours of videotape in which appellant, at various stages, denied the crime, confessed to the crime, again denied the crime, and confessed to relatives. The trial court overruled the objection, finding that the prosecutor did not make reference to appellant’s right not to testify during the trial.
The Fifth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, and article I, section 15 of the California Constitution assure a criminal defendant of the right to remain silent in the face of criminal charges. (See also Evid. Code, § 940.) As a corollary to these rights, error occurs whenever the prosecutor comments either directly or indirectly upon the defendant’s failure to testify in his or her defense or urges the jury to infer guilt from the defendant’s silence. (Griffin, supra, 380 U.S. at p. 612; People v. Bradford (1997) 15 Cal.4th 1229, 1339; see also Evid. Code, § 913, subd. (a).)
When considering a claim of Griffin error, the court must determine whether there is a reasonable likelihood that the jury would have understood the contested argument as a comment on the defendant’s failure to testify. (People v. Clair (1992) 2 Cal.4th 629, 663.) Here, the prosecutor’s contested argument was a reference to appellant’s various confessions during the investigation; it was not a reference to the fact that appellant had not testified during trial in his own defense. We agree that no Griffin error occurred.
Neither do we find Doyle error. In Doyle, the United States Supreme Court stated, “We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” (Doyle, supra, 426 U.S. at p. 619.) “Doyle holds that the prosecution may not, consistent with due process and fundamental fairness, use postarrest silence following Miranda warnings to impeach a defendant’s testimony at trial.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118.) Here, appellant waived his Miranda right to remain silent and gave statements to law enforcement.
In any event, we find any Griffin or Doyle error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) “The Chapman test is generally applicable to error under the United States Constitution … [citation].” (People v. Neal (2003) 31 Cal.4th 63, 86.) Although appellant told law enforcement various versions of events, he also confessed that he drove Doris to the canal bank, choked her, and threw her body into the canal. There was substantial evidence that appellant was the last person to see Doris alive and, when her body was discovered, appellant’s belt was around her neck. On this record, we hold that any error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HILL, J., KANE, J.
Addressing the question of appellant’s mental state, the prosecutor said: “What do we know about [appellant]? First of all, he is a 20-year-old man sneaking an 11-year-old girl out to a canal bank at night. We also know there’s at least one prior incidence of forced sex on a younger woman.”
Then, addressing premeditation, the prosecutor said: “So, do we have evidence of premeditation and deliberation? You bet we do. [¶] Cristal testified about her relationship with [appellant]. And she had some very enlightening information which related to what they had done in the past. What he had done in the past. They started their sexual relationship when she was 15 and he was 19. She testified that he initiated sex by unbuttoning and unzipping her pants before he would undress himself.” Then, referring to exhibits in evidence, the prosecutor continued: “You can see how the pants are unbuttoned and completely unzipped, and how, at least from this angle, you can see the pants completely off of her left thigh area and down along the buttock. [¶] … [¶] Folks, those pants didn’t get that way when she was sitting in the car and they were hugging and kissing. Those pants didn’t get that way when he was struggling with her and when he was strangling her. Those pants got that way because he unbuttoned and unzipped them and tried to pull them off. [¶] … [¶] This is the scrape mark on her buttock …. That doesn’t get there through the jeans. That was done against bare, naked skin. [¶] What happened to Cristal in the past, I submit to you, was what was going to happen to Doris.”
Then: “Cristal testified that [appellant] had taken her out to canals for sex on two prior occasions.… [¶] Cristal also testified that [appellant] took her out to the same canal where Doris’ body was found. They parked and they had sex.…”
Returning to the question of force: “We know the first time that [appellant] and Cristal C[.] had sex he forced himself on her. [¶] This is a photograph of one of the injuries that was found on Doris …. [T]hose bruises could very well have been from a struggle in the car and on the canal bank just prior to her death.”
Finally, the argument continued: “He knew what he was doing with the 11 year old was wrong, kissing her, probably complementing [sic] her, making passes at her behind Cristal’s back. Who knows how long he had been grooming her for this opportunity. Then, on December 1st, Doris and Cristal are alone.… He sees his opportunity, so he sneaks [Doris] out of the house and he takes her to the canal. He probably wanted to recapture some of the excitement and the thrill he previously had with Cristal when she was so young, they first met.” But Doris “knew this was wrong” and a struggle ensued. “That very second that she balked [and said she was] telling [her] mom and dad, he knew he was in some serious trouble …. It was going to cost him a lot. He was going to lose Cristal, the woman he loved. He knew he wouldn’t see his kid. He knew he’d be banished from the home ….”